Key witness in Ben Roberts-Smith defamation trial acted ‘like a drunken fool’ towards police, says magistrate

One of the key witnesses in the Ben Roberts-Smith defamation trial has pleaded guilty to hindering a commonwealth official after he acted "like a drunken fool" in refusing to hand over his phone, wanted as part of a police war crimes investigation.

In April last year, Australian Federal Police sought the phone of the former soldier as part of a broader investigation into war crimes potentially committed by Australian soldiers in Afghanistan.

There have been no charges of war crimes laid in that investigation to date.

The former SAS soldier, anonymised as Person X before the court, had concluded giving evidence in Roberts-Smith's defamation trial when police approached him at Sydney's Marriott hotel, late on the night of 26 April 2022, and asked for his phone as part of a search warrant.

He refused to hand over the phone and tried to leave by the lift. In attempting to evade officers, he made contact with a police officer, though the court heard this contact was "not deliberate".

Magistrate Miranda Moody, said Person X had acted "like a drunken fool" and "made a jolly nuisance of himself" in being "extremely discourteous and rude".

"There seemed to be no basis in his reacting in the hostile fashion as he did."

However, the magistrate made note of Person X's previous good record, his distinguished military service in the UK and Australia, which included decorations for bravery and gallantry, as well as his previous responsibilities guarding an Australian prime ministers and other high-ranking officials.

The magistrate also noted he was, at the time of the warrant being executed, extremely stressed having spent a number of days in the witness box in court, giving evidence and being cross-examined.

Person X pleaded guilty to the offence of hindering a commonwealth official. The charge was dealt with by way of section 19B of the commonwealth Crimes Act and dismissed. No conviction was recorded.

Roberts-Smith's defamation case is against three newspapers he alleges defamed him in a series of articles that accused him of committing war crimes, including murder. Roberts-Smith denies all wrongdoing.

The newspapers are defending their reporting as true. That case is awaiting judgment in the federal court.